Krasner v. Henry

• Docket Number: 8 M.D. 2024
• Decision Date: 14 June 2024
• Citation: 319 A.3d 56
• Parties: Larry KRASNER, in his official capacity as the District Attorney of Philadelphia; Office of the District Attorney, City of Philadelphia, Petitioners v. Michelle A. HENRY, in her official capacity as Attorney General of Pennsylvania, Respondent
• Court: Pennsylvania Commonwealth Court

319 A.3d 56

Larry KRASNER, in his official capacity as the District Attorney of Philadelphia; Office of the District Attorney, City of Philadelphia, Petitioners

v.Michelle A. HENRY, in her official capacity as Attorney General of Pennsylvania, Respondent

No. 8 M.D. 2024

Commonwealth Court of Pennsylvania.

Argued April 10, 2024

Decided June 14, 2024

Original Jurisdiction

John S. Summers and Matthew A. Hamermesh, Philadelphia, for Petitioners.

Matthew H. Haverstick, Philadelphia, for Possible Intervenor Southeastern Pennsylvania Transportation Authority.

Keli M. Neary, Executive Deputy Attorney General, and Matthew Skolnik, Senior Deputy Attorney General, Philadelphia, for Respondent.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge, HONORABLE PATRICIA A.

McCULLOUGH, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge, HONORABLE ELLEN CEISLER, Judge, HONORABLE LORI A. DUMAS, Judge, HONORABLE MATTHEW S. WOLF, Judge

OPINION BY JUDGE COVEY¹

Before this Court are: (1) the Applications for Summary Relief filed by Larry Krasner(DA Krasner) in his official capacity as the District Attorney of Philadelphia and the Office of the District Attorney, City of Philadelphia(collectively, DA)(DA Application), and Michelle A. Henry, in her official capacity as Attorney General(Attorney General) of Pennsylvania (Attorney General Application)(collectively, CrossApplications); (2) the DA’s Petition for Preliminary Injunction(PI Petition) and Emergency Supplemental Application for Preliminary Injunction(Supplemental PI); and (3) the Southeastern Pennsylvania Transportation Authority’s (SEPTA)amended petition to intervene(Intervention Petition) with accompanying Proposed Application for Summary Relief (SEPTA Application).

I.Background

[1] At the outset,

[i]n 1963, the General Assembly established SEPTA pursuant to the Metropolitan Transportation Authorities Act[(MTAA)], 74 Pa.C.S. §§ 1701-1785.[FN]2 Th[e MTAA] provides:

There is hereby authorized the creation of a separate body corporate and politic in each metropolitan area, to be known as the transportation authority of that metropolitan area, extending to and including all of the territory in the metropolitan area.

74 Pa.C.S. § 1711(a).A "metropolitan area" is defined as "[a]ll of the territory within the boundaries of any county of the first class and all other counties located in whole or in part within 20 miles of the first class county."74 Pa. C.S. § 1701.Philadelphia is a "county of the first class."Id.Consistent with Section 1701, SEPTA operates a mass-transit system in Philadelphia and the four contiguous counties of Bucks, Chester, Delaware, and Montgomery.²As a transportation authority, SEPTA exercises the powers of a Commonwealth agency.

[FN]2 The original [MTAA] has been replaced by the current [MTAA, Act of February 10, 1994, P.L. 20(1994 Act),³] ….All transportation authorities are deemed to have been created under the current act.74 Pa.C.S. § 1711(c)(1).

Se. Pa. Transp. Auth. v. City of Phila.,122 A.3d 1163, 1164-65(Pa. Cmwlth. 2015), aff'd,639 Pa. 1, 159 A.3d 443(2017).

In the 1994 Act, the General Assembly found and declared, inter alia:

(a)Findings.--

….

(4) The sound planning and development of metropolitan mass transportation facilities in accordance with sound and approved plans for their promotion, development and growth will promote the public health, safety, convenience and welfare, and the public acquisition of existing mass transportation facilities in accordance with the sound plans for their redevelopment and promotion will promote the public health, safety, convenience and welfare.

….

(7) The establishment of metropolitan transportation authorities as authorities of the Commonwealth and the continuance of the existing metropolitan transportation authorities will promote the public safety, convenience and welfare.

….

(b)Declaration.--Therefore, it is hereby declared to be the policy of the Commonwealth to promote the safety and welfare of its inhabitants by authorizing the creation or continuation of a body corporate and politic for each metropolitan area, to be known as the transportation authority of such area, which shall exist and operate for the purposes contained in this chapter as an authority of the Commonwealth.These purposes are hereby declared to be public uses for which public money may be spent and private property may be acquired by the exercise of the power of eminent domain.

Id.Thus, the Commonwealth’s purpose, in part, in establishing SEPTA was to promote the safety and welfare of Commonwealth citizens.

Section 1741(a) of the MTAA states, in relevant part:

(a)Powers enumerated.--[SEPTA] shall have and may exercise all powers necessary or convenient for the carrying out of the purposes of this chapter, including the following rights, powers and duties: (1) To have perpetual existence.

74 Pa.C.S. § 1741(a).The MTAA provides for the appointment of SEPTA’s board of directors, granting various entities appointment power.SeeSection 1713(a) of the MTAA, 74 Pa.C.S. § 1713(a).Specifically, the Governor may appoint one board member; the Majority Leader and the Minority Leader of the Senate and the Majority Leader and the Minority Leader of the House of Representatives may each appoint one board member; and the county commissioners or the county council in each county and, in Philadelphia, the mayor, with the approval of the city council, may appoint two board members.See74 Pa.C.S. § 1713(a)(1)-(3).

Moreover,

[u]nder its enabling statute, SEPTA has[, inter alia,](1) a separate corporate existence, [see]74 Pa.[C.S.] § 1711(a);(2) the power to sue and be sued, [see]id.§ 1741(a)(2); and (3) the power to enter into contracts and make purchases on its own behalf, [see]id.§ 1741(a)(8), (9), (12), (18), (20), (21), (22), (24), (25).Other attributes support immunity: (1) its enabling statute provides that SEPTA "shall in no way be deemed to be an instrumentality of any city or county or other municipality or engaged in the performance of a municipal function, but shall exercise the public powers of the Commonwealth as an agency and instrumentality thereof,"id.§ 1711(a), and "shall continue to enjoy sovereign and official immunity, as provided [by the statutory provisions that comprise and pertain to what is commonly referred to as the Pennsylvania Sovereign Immunity Act],"⁴id.§ 1711(c)(3);(2) SEPTA has the power of eminent domain, [see]id.§ 1741(a)(13); and (3) SEPTA is immune from state taxation.

Cooper v. Se. Pa. Transp. Auth.,548 F.3d 296, 307(3d Cir.2008)(footnotes omitted)(emphasis added);see alsoSe. Pa. Transp. Auth.

On May 9, 2022, the Senate Transportation Committee conducted a public hearing on the Safety and Sustainability of Public Transportation in Pennsylvania.Testimony was presented at the hearing relating to the homelessness, mental illness, and substance abuse issues that contribute significantly to the number of incidents that SEPTA personnel and riders encounter.⁵

In October 2022, the General Assembly found that, during DA Krasner’s time as DA, violent crime and violence in Philadelphia increased, and residents and the economy suffered due to his policies.SeeSelect Committee on Restoring Law and Order, Second Interim Report, October 24, 2022(Select Committee Report).On October 25, 2022, House Bill 140 (PrinterNo. 3601) was amended to include provisions for the appointment of a special prosecutor authorized to prosecute all crimes within SEPTA.Governor Josh Shapiro(Governor Shapiro) vetoed that bill.

Thereafter, Senator Wayne Langerholc, Jr., Senate Transportation Chair, introduced Senate Bill 140, which included the same provisions as House Bill 140 for the appointment of a special prosecutor authorized to prosecute all crimes within SEPTA.Senate Bill 140 passed the Senate and the House.On December 14, 2023, Governor Shapiro signed Act 40 into law.SeeDAAppl. Ex. 1, Act 40.

Act 40 mandates, in pertinent part:

Within 30 days of the effective date of this section, the Attorney General shall appoint a special prosecutor to investigate and institute criminal proceedings for a violation of the laws of this Commonwealth occurring within a public transportation authority that serves as the primary provider of public passenger transportation in the county of the first class in accordance with this section.

74 Pa.C.S. § 1786(a).

"Philadelphia presently is the only city of the first class in [this Commonwealth]."Spahn v. Zoning Bd. of Adjustment,602 Pa. 83, 977 A.2d 1132, 1143(2009)."There is only one first class county, Philadelphia[.]"Petition of Berg,712 A.2d 340, 344 n.5(Pa. Cmwlth.), aff'd,552 Pa. 126, 713 A.2d 1106(1998);seeSe. Pa. Transp. Auth.,122 A.3d at 1165("Philadelphia is a first class city that is governed under authority of the First Class City Home Rule Act."⁶).The "public transportation authority that serves as the primary provider of public passenger transportation in the county of the first class" referred to in Act 40 is SEPTA.SeeSEPTA Br.at 9("There is no dispute that this ‘public transportation authority’ is SEPTA.");⁷see alsoDAAppl. Ex. 3, 2023 Pa. Leg. J. Sen. 357(May 2, 2023)(wherein the discussion focuses solely on SEPTA).

Act 40 provides that, effective immediately and until December 31, 2026:

Notwithstanding any other provision of law or regulation, a special prosecutor shall have the authority to investigate and prosecute, and has jurisdiction over, any criminal matter involving an alleged violation of the laws of this Commonwealth occurring within [SEPTA].The special prosecutor’s prosecutorial jurisdiction shall include the power and independent authority to exercise all investigative and prosecutorial functions and powers of the [DA] in the county of the first class.

74 Pa.C.S. § 1786(a)(2);see also74 Pa.C.S. § 1786(a)(8)("No new action or proceeding may be initiated by a special prosecutor u...